The United States Bankruptcy Court for the Southern District of Ohio has implemented a Mortgage Modification Mediation (“MMM”) program. This MMM program is similar to the one enacted in Florida in 2014. The MMM program is designed to function as a forum for debtors and creditors to reach a consensual resolution when a debtor’s property is at risk of foreclosure or any other adverse action.

PLG’s familiarity with the MMM process
Padgett Law Group (“PLG”) is already familiar with the MMM program being that PLG has been involved in MMM mediations in Florida since its enactment in 2014. This allows PLG to seamlessly assist its clients in navigating this process in Ohio.

Why Client’s Need Counsel at The Beginning of The Case
The MMM process begins by the Debtor including language in the Non-Standard Provisions of the Chapter 13 Plan that he or she intends to participate in MMM. The Debtor must then file a Motion for Referral to Mortgage Modification Mediation. The Debtor must also make adequate protection payments of 31% of gross monthly income, less HOA fee or the contractual mortgage payment (whichever is less) on homestead property and 75% of the rental proceeds for non-homestead property.
It is important to evaluate whether or not these adequate protection payments are sufficient and if not, timely file an objection. Moreover, it is important to determine if the adequate protection payment amount is sufficient to cover escrow. If not, then there is an argument that it is not “adequate protection” and therefore objectionable.

With open nominations, each category is narrowed to just five finalists each year in a peer review conducted by Five Star Global’s editorial group. 2020 Finalists are featured in the September issue of The M Report. The full issue can be accessed here. 
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PLG was previously recognized in the same category when Keena Newmark, Esq., the firm’s Managing Attorney of Bankruptcy was also a top-five finalist, making the 2020 award the firm’s second consecutive year in the awards’ top five nominees. In 2019, Newmark was the only non-servicing professional recognized in the category. The same year, The M Report recognized PLG as a Top 25 Place to Work in the default services industry.

“PLG has always been supportive and open to my interest in training clients, educating peers, speaking on panels, writing articles, and volunteering with our trade associations. I’m grateful to be recognized by Five Star Global for those efforts. I am passionate about the work we do and it’s a defining moment in my career to be recognized along with such other esteemed leaders,” said Marissa Yaker, Esq.
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Chief Development Officer Robyn Padgett added, “We have always aggressively pursued the best talent in the industry and invested in their growth as #PadgettPeople. Having two finalists, back-to-back, in the Rising Business Leader category speaks to that commitment and the firm takes great pride in the success of Marissa and Keena.”

Yaker joined PLG in 2017 and has practiced in the residential mortgage default space since 2013. She is licensed to practice in the state Florida. In her role as Managing Attorney of Foreclosure, Yaker oversees foreclosure processing and operations across seven physical locations within the firm’s footprint which includes Florida, Georgia, Tennessee, Arkansas, Texas, and Ohio.

The 2020 Five Star Conference will be held virtually September 14-15 and winners of the Women in Housing Awards will be featured in the October issue of The M Report. Yaker is moderating a LL100 Fall Servicing Summit panel during the Five Star conference and will be a featured moderator during PLG's web summit, PANDIFFERENT, available on October 1. 

On Thursday, August 27, 2020, FHA and FHFA Released the highly anticipated extensions extending the Foreclosure and Eviction Moratoriums until December 31, 2020.
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VA released their updated Foreclosure and Eviction Circulars yesterday (Circular 26-20-29 and Circular 26-20-30) extending the foreclosure and eviction moratorium until December 31, 2020. On Friday, August 28, 2020, USDA released additional guidance and extended its moratorium through December 31, 2020, as well. Read USDA's release here. 

​Need more on FHA updates and developments?  
Register for PANDIFFERENT, the PLG web summit, on October 1 and hear directly from Marissa Yaker, Esq. as she leads a session on FHA updates, handbook revisions, and the impact of COVID-19 holds and moratoriums on foreclosures and evictions as we look at post-pandemic default servicing.

​In a unique move, that mimics the rules of Federal Procedure, The Texas Supreme Court has made some of the biggest discovery changes to occur in Texas State trial courts in the past two decades. Attorneys and staff will need to take to learn and fully understand all the changes in order to properly implement new procedures as they apply to all cases filed on or after January 1, 2021. 
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In accordance with the 86th legislature and Senate Bill 2342 the Texas Supreme Court has approved amendments to Rules 169 and 194 of the Texas Rules of Civil Procedure. 

Rule 169 governing expedited actions has been amended to apply to suits in which all claimants, other than counter-claimants, affirmatively plead that they seek only monetary relief aggregating $250,000 or less excluding interest, statutory, or punitive damages and penalties, and attorney’s fees and costs. This amendment has effectively raised the statutory limitation for expedited actions from $100,000 to $250,000. This will essentially promote the prompt, efficient, and cost-effective resolution of civil actions filed in courts of law in which the amount in controversy does not exceed $250,000. Further, certain actions will remain exempt from Rule 169’s application by statute. See e.g. Tex. Estates Code Sec. 53.107. 
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The most important changes to be aware of however have been made to the rules of discovery. Per the new amendments, discovery and production will no longer be optional.

Effective as of January 1, 2021 Rule 194 has been amended as follows: 
194.1 Duty to Disclose; Production 

• Duty to Disclose. Except as exempted by Rule 194.2(d) or as otherwise agreed by the parties or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties the information or material described in Rule 194.2, 194.3, and 194.4.
• Production. Copies of documents and other tangible items ordinarily must be served with the response. But if the responsive documents are voluminous, the response must state a reasonable time and place for the production of documents. The responding party must produce the documents at the time and place stated, unless otherwise agreed by the parties or ordered by the court and must provide the requesting party a reasonable opportunity to inspect them.

194.2 Initial Disclosures 

• Time for Initial Disclosures. A party must make the initial disclosures at or within 30 days after the filing of the first answer unless a different time is set by the parties’ agreement or court order. A party that is first served or otherwise joined after the filing of the first answer must make the initial disclosures within 30 days after being served or joined, unless a different time is set by the parties’ agreement or court order.
• Content. Without awaiting a discovery request, a party must provide to the other parties:

1. The correct names of the parties to the lawsuit;
2. The name, address, and telephone number of any potential parties;
3. The legal theories and, in general, the factual bases of the responding party’s claims or defenses (the responding party need not marshal all evidence that may be offered at trial);
4. A computation of each category of damages claimed by the responding party—who must also make available for inspection and copying the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered;
5. The name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person’s connection with the case;
6. A copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the responding party has in its possession, custody, or control, and may use to support its claims or defenses, unless the use would be solely for impeachment;
7. Any indemnity and insuring agreements described in Rule 192.3(f);
8. Any settlement agreements described in Rule 192.3(g);
9. Any witness statements described in Rule 192.3(h);
10. In a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills that are reasonably related to the injuries or damages asserted or, in lieu thereof, an authorization permitting the disclosure of such medical records and bills;
11. In a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills obtained by the responding party by virtue of an authorization furnished by the requesting party; and
12. The name, address, and telephone number of any person who may be designated as a responsible third party.

 ​The Texas Supreme Court has commented that the amendment to Rule 194 will assist in balancing the need for lowering discovery costs against the complexity of and discovery needs in expedited actions. Further, Rule 194 is amended based on Federal Rule of Civil Procedure 26(a) to require disclosure of basic discovery automatically, without awaiting a discovery request. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party’s disclosure or because another party has not made its disclosures. 

In a decision that will be deemed as a big win for creditors, litigators, or really anyone who has ever dealt with evasive defendants, the State of Texas has decided to enter into a new age and territory when it comes to dealing with service of process.
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The Supreme Court of Texas in accordance with the 86th Legislature and Senate Bill 891 has approved amendments to Rule 106 of the Texas Rules of Civil Procedure. Rule 106 has been revised in response to section 17.033 of the Civil Practice and Remedies Code, which calls for rules to provide for substituted service of citation by social media.

ProChamps will implement the requirements outlined below for the City of West Palm Beach on the implementation detailed. Please update information accordingly. The changes outlined will be implemented in our system August 13th, 2020. These changes were made effective May 18, 2020.

​Please make note of the following pending changes:

• Pre-Filing (default) Occupied/Vacant – removed
• Exemptions: Governmental Agencies
• Property Manager:  In addition to the Property Manager required to be within 20 miles of the community they are also required to be empowered to accept service of warnings, citations, and other legal process.

​Please review further details about the changes within the document posted on PROCHAMPS and any additional forms required at PROCHAMPS.com.